What You’ll Learn About Here

  • General Points to Understand About Land Use Law
  • Rules for Learning More About How Your Land is Zoned
  • How Farmland Preservation Can Create Opportunities for Direct Farm Marketers
  • Pesticide Drift and Protecting Your Operation
  • Leases and Direct Farm Marketing
  • Nuisance Law and Direct Farm Marketing

Perhaps, the most critical element in any farming operation is the land on which the farm is located.  Whether you own your farm or lease it, your ability to use the property can be impacted by the actions of others.  Local governments may enact zoning ordinances which place limits on what you can do.   Neighbors may do things which adversely impact you, such as spraying pesticides which drift on your crops. This chapter addresses a variety of important legal issues relating to owning, leasing, and using land.  It includes a discussion of how local zoning ordinances may impact direct farm marketing operations and explains how you can be involved in shaping local land use laws.  It also looks at other issues including the operation of farm leases, right to farm laws, and pesticide drift disputes.  Special attention is given to how programs to preserve farmland may create opportunities for direct farm marketers.

General Points to Understand About Land Use Law

As a direct farm marketer, you must consider how local land use laws and ordinances might apply to your operation.  There are several assumptions or general premises to keep in mind.  First, you should assume that wherever your farm is located the land is probably subject to some local government’s land use law.  Second, you can safely assume that your farm operation is currently a legal use under the zoning ordinance, meaning it is in an area classified for your type of use.  This conclusion is based in part on the assumption that if no one has tried to close you down for violating a zoning ordinance yet then you are probably legal.  Third, your farm is also probably a “permitted use” under the local land use ordinance, which means it is a use specifically mentioned in the zoning ordinance for the district – such as “A-1 agriculture” – in which it is located.  Fourth, if your farm is not a “permitted use”, then it is probably what is known as a “nonconforming use.”  This means while you would not be allowed to start today, it is legal to continue because your use was in existence prior to the change in the current zoning.  In otherwords, it was “grandfathered” in under the new zoning.   Fifth, if your farm is a “non-conforming use” this means two things.  It is now located in an area zoned for some use other than agriculture – such as residential – and your farm is probably subject to restrictions on how it can be operated or expanded.

Rules for Learning More About How Your Land is Zoned

As noted above, most of the land in the U.S. – farmland included – is subject to some local land use law limiting how it can be used.  While most of the zoning laws found in rural areas, such as county zoning ordinances, specifically allow for the operation of farms, zoning laws passed by cities and towns may be less friendly to farming.  This can be especially significant for many direct farm marketing operations because they are often located near towns or in areas which are becoming more urbanized.  As the nature of the area around you changes it is likely the zoning laws will change as well.  This is why it is important to be aware of how local land use laws apply to your business.  For example, you might be surprised to learn that your farm is considered to be a non-conforming use, meaning it is not legal under the current zoning.  But if you never had reason to inquire, or if you have not kept on top of changes being proposed in local land use laws, surprises like this are possible.

The following discussion looks at several rules to keep in mind when thinking about how local land use laws apply to your farm.  The first two rules to keep in mind are:

1. Be aware of whether your property is currently zoned and if so – how is it classified.

2. If it is zoned, determine what the ordinance provides as to the  “permitted” and “accessory” uses allowed in your zoning district.

To satisfy these two rules it is important to either contact the local land use officials – such as the county zoning administrator – or have access to a current copy of the local land use map and ordinance.  If you don’t want to visit with the zoning personnel directly, a copy of the map and ordinance should be available to review at the main administrative office such as the county courthouse or city hall.   If you can obtain a copy of the ordinance do so, because then you can try to read and understand how it applies to your land.  If you can not obtain a copy, you should at least make photocopies of the pages which describe what activities you can – and can not – do in your zoning district.

As part of the process of finding out whether your land is zoned you should determine which local government has zoning authority over your land.  The answer to this question will vary by the state and by the location of your property.  For example, in Iowa the ninety-nine counties have authority to enact county zoning but only two-thirds have done so.  This means some farmland in the state is not subject to county zoning.  But Iowa cities and towns also have zoning authority and most have enacted their own zoning ordinances.  So if a farm is located within the city limits, which is often the case because cities can extend their boundaries by annexation, the farm is subject to municipal zoning, whether or not the county has a zoning ordinance.  The municipal zoning will generally be much less friendly to farming than the county zoning, which often has a district specifically for agriculture.

Once you determine how your farm is zoned and know what is or is not allowed, you will have a better idea of how the local land use laws relate to either your current operation or to your future plans.  Many of the court cases involving direct farm marketing have involved land use issues – so these are important topics to understand.  While it is important to know the current land use rules, it is also important to recognize that they can change.  This brings us to the next rule to consider.

3. Land currently not subject to zoning can become zoned without your approval.

This usually happens in one of two ways.  First, land that is currently zoned – such as for agricultural uses – may be rezoned to allow other uses, such as for residences.  If your farm land is zoned for agriculture but is rezoned for residential, the new zoning classification may prohibit farming in the residential zone.  This means you would become one of the “non-conforming uses” discussed above.   The rezoning doesn’t mean you have to stop farming but it does mean your actions may be restricted and it is probably a good sign the neighborhood is changing and becoming less agricultural.

Rezoning generally happens when development pressure effects an area and landowners or developers want to make more intensive uses of the land.  Usually the rezoning begins when the landowners request the local government to change the zoning to accommodate their desired use.  In some situations the local government can initiate the rezoning without any request from the landowners.  In either case, the state law and the local ordinance will provide a detailed procedure which must be followed to complete the rezoning.  This procedure will generally involve notifying all the neighboring landowners and will include public meetings, prior to the vote.  If you get a notice that land nearby is being rezoned you should pay special attention to how this might affect your farm.

The other common way farmland becomes subject to zoning is when land currently not zoned, such as in a rural area, is annexed by a city or town.  The effect of the annexation is to extend the city limits and make the zoning ordinance of the town apply to the newly annexed territory.  The formerly unzoned farmland may now become a non-conforming use, if it is located in a zoning district for something other than agriculture.  Annexation is a legal procedure whereby a governmental body – such as a city or town – can expand its territory.  State law provides the procedure for annexation, which typically involves a vote of the landowners whose property is involved.  As a general rule, farmers have less success in standing in the way of annexation than they do in helping shape rezoning requests.  Having said that, in either case it is important to be involved in the local land use process and to make your voice heard.  State law requires that local land use ordinances be based on comprehensive plans developed with the input of landowners and citizens.  Most zoning ordinances are developed and administered by professional land use planners.  Many of these people are sensitive to the impact of development on agriculture and are aware of the need to preserve local farmland.  This brings us to the next rule.

4. Be aware of and participate in public hearings and land use procedures affecting your farm and the land around it.

Local land use laws can have a significant impact on your operation and on any plans you might have to expand or try a new venture.  You can help protect the investment in your operation by helping influence the land use laws controlling how the land can be used.  If you want to have a future in direct farm marketing you may have to work to insure that local land use laws make this possible.  As the following discussion indicates, there are numerous examples of how local and state land use laws have had serious impacts on direct farm marketers.  When you get a notice from the local officials that a change in the local zoning is being proposed you should make sure your voice is heard and your interests considered.  You should get to know the local land use planning staff and attend meetings of the local planning and zoning board or the board of adjustment which hears individual requests for relief from zoning laws.  By knowing how the local procedures work and by knowing the local citizens who make the decisions you can have more influence over what happens.  If you contact the local zoning officials for more information, the following box lists some questions to consider asking them.

Five Questions to Ask the Local Land use Officials
  • which political jurisdiction has legal authority over your property?
  • if the land is zoned, how is it classified?
  • are farming and direct farm marketing allowed as “permitted uses” on the property?
  • how is your farm direct marketing operation classified, as a farm or a commercial business?
  • are you subject to “commercial” standards concerning the design of facilities?

Answers to Commonly Asked Questions About Zoning and Roadside Markets

Q. If I am located in an area zoned for agricultural uses does this mean I can operate a roadside stand on my property?
This is perhaps the most common land use issue facing farmers involved in direct farm marketing.  It has also been the direct farm marketing issue subject to the most court cases and disputes.  To answer the question you will have to examine the language used in the local zoning ordinance to see how agriculture is defined.  If the ordinance defines agricultural uses specifically to include on-farm marketing or if it specifically mentions farmstands, then you are probably in good shape.  If the ordinance only mentions farming or agriculture then the question will become whether these terms are commonly understood to include farm based activities to market what is raised on the farm.  It is important to recognize that even if the local ordinance specifically allows for some types of direct farm marketing, the law may limit how this can be done, for example by placing time limits on when a farmstand can operate.
Q. Can local governments use zoning laws to limit my ability to construct and operate a farmstand?
The simplest answer to this question is yes they can and unfortunately they often do.  For example, a 1982 study obtained from New Jersey Cooperative Extension at Rutgers,  [“Summary of Selected New Jersey Municipal Laws and Regulations Affecting Retail Marketing of Food”, by Sharon B. Balsam and Roger Beck], discussed how local regulations affect direct farm marketing.  The report consists of responses to surveys sent to municipal officials throughout the state.  Several of the township responses included the following statements, such as this one for Somerset County, Green Brook Township, “Public markets (i.e., farmers markets) and roadside stands are prohibited”.  A similar answer “Roadside stands are not permitted in the borough” was provided for Watchung Borough of Somerset County.  The report indicated that local regulations and prohibitions for direct farm markets were more common in urban and suburban counties than in rural counties.  The point is that if a local government wants to, it may have the legal authority to prohibit certain types of direct farm marketing.  In situations where this has happened, the courts will commonly support the enforcement of the local ordinances, as seen in the New Jersey case discussed in the sidebar on the previous page.
Q. What if the local zoning ordinance does not include any apparent restrictions on direct farm marketing, does this mean my operation is safe?
The fact no explicit regulation restricts your operation is a positive sign, however this does not mean local authorities might not question whether you have the right to operate.  Local zoning officials are interested in seeing that land is used in ways which limit the disputes between neighboring landowners.  This means that if local zoning officials receive complaints from your neighbors, such as that traffic to your roadside stand is disrupting the neighborhood, they will probably investigate the complaints.  The fact the local ordinance does not include language specifically limiting your operation does not mean local officials may not be able to come up with a theory for trying to regulate you.  For example, if your farm is a non-conforming use, it will be subject to restrictions on whether it can expand.  If in the past you have only been farming but have recently added a roadside stand, the issue might be whether this “new use” is allowed.  Another issue might be whether your efforts at direct farm marketing are really a form of agriculture or whether they are a commercial activity.  The issue of how roadside stands are treated for purposes of local zoning ordinances which prohibit commercial uses in residential and even agricultural zones, has often been a question before the courts.  Consider the experience of one of the advisors on this project, as told in the box below.
”Zoning
In writing the book a number of Iowa direct farm marketers served on an advisory committee to help review the drafts. One person on the committee was Joan Allsup, a staff member wit the National Catholic Rural Life Conference in Des Moines, who also runs a direct farm marketing operation near the small central Iowa town of Mitchellville. Joan called one day noting that she may have a legal matter of her own which needed attention. Her farm is located about 1/4 mile outside of town, but is within the city limits and thus subject to city zoning. The land was in the A-1 Agricultural District, and the zoning ordinace specifically proivdes that the “principal permitted uses” include: “2.1 Agriculture and usual agricultural buildings and structures. [and] 2.7 Nurseries, greenhouses, truck gardens.” However, city zoning officials told Joan they were conducting an investigation to see whether the farmstand was in violation of the ordinance, because it was a “commercial enterprise” not allowed in the agricultural zone. Fortunately, for Joan, negotiations with city officials resulted in their accepting the farmstand as allowed under the language of the ordinance. The irony is that the only grocery store in the town had closed recently and the Allsup’s farmstand had become an important local source of fresh food for many townspeople.
This incident illustrates several important points about how local land use ordinances can pose problems for direct farm marketers.  First, once a farm is under the zoning authority of a local city, the zoning ordinance can be written so as to place significant restraints on what can be done on the farm.  Second, local zoning officials may not want to allow direct farm marketing operations in all areas.  Their reasons may include fear they will increase traffic, competition with commercial businesses, or the impact on neighboring landowners.  Third, the case illustrates why it is important for farmers to work with local officials to see that local land use laws – and the officials who enforce them – are sensitive to the needs and value of direct farm marketing.

Q. If property is zoned to allow a 'truck garden' does this mean operating a 'farmstand' is also legal?
The language of the zoning ordinance involved in the Allsup dispute included the term “truck garden” as one of the allowed principal permitted uses in the agricultural zone.  The question raised by this term is whether a truck garden implicitly includes the ability to sell what is raised in the truck garden.  Research on this issue, found one case addressing the question.  In a 1996 New York case, Ecker v. Dayton, [234 A.D.2d 584 (New York, Sup. Ct.. App. Div, 2nd, 1996)], the court considered whether the zoning ordinance, which allowed a “truck garden” in a residential zone meant the farmstand being operated there was also legal?  The neighbors in the residential area complained the farmstand was a commercial use which should not be allowed.  The court looked at the language of the ordinance, which included the phrase “nurseries, truck gardens and greenhouses” and ruled a farmstand is “customarily incidental or a usual accessory use of a truck garden.”  The court allowed the farmstand to continue but ruled the sales were limited to only those products grown in the truck garden. This means the farmer could not purchase products raised by others or even bring into the stand products produced on land being farmed elsewhere.  The point of the case is that the zoning status for your property may limit what can be sold and where.

Q. Are there examples of local ordinances which limit the operation of roadside markets?
Yes, examples of such local restrictions can be found in many states, particularly in those which do not have state laws specifically protecting roadside stands.  The following is an example of a local township ordinance from Michigan which restricts how and when roadside markets can operate.  The Oakland Township ordinance provides:

Roadside stands:

a) No more than one stand for the sale of agricultural products grown on the premises, operating not more than 120 days per calendar year during daylight hours, set back at least 30 feet from the front lot line.  Off street parking shall be provided for not less than 5 automobiles.

b) 1 on-site and 2 off-site temporary signs measuring not more than 4 square feet each shall be allowed for each roadside stand.  Expressed permission of the owner is required for locating the off-site signs.  The temporary signs are allowed only during the duration of the maximum 120 day operating period.  All general sign regulations stipulated in Article XVIII, §01. shall pertain.

This ordinance was the subject of an opinion by the Michigan Attorney General involving the question of whether the ordinance violated the state’s right-to-farm law which prohibits enforcement of local ordinances treating agricultural uses as nuisances. The Attorney General upheld the ordinance as valid on the basis that nothing in it made a roadside stand a nuisance.  Instead the ordinance merely regulated how and when the stands could operate.

Q. Do any states provide statutory protection for farm direct marketing operations, so local zoning laws can not affect them?
Yes, a number of states have enacted land use laws specifically designed to protect the operation of farmstands from the application of local zoning ordinances.  These provisions are often just one part of state laws designed to protect farming in general.  If this is the case, then the issue may be whether the law defines farming or agriculture to include different forms of direct farm marketing.  The Massachusetts law concerning the application of local zoning ordinances to farmstands is one of the most well developed examples of such a law.  The law is discussed in the accompanying sidebar.
Q. Does the Massachusetts law mean local governments can not regulate the design or operation of roadside stands?
No, the law does not go this far as illustrated by a 1997 court case.  In Prime v. Zoning Board of Appeals of Norwell, [680 N.E. 2d 118 (Mass. App. Ct. 1997)] a lessee of farmland applied to construct and operate a farmstand.  The local zoning board approved but subjected the land to a site plan review and limited the operation to certain conditions.  The neighbors appealed the decision because they were opposed to the farmstand and the operator appealed because he opposed the conditions.  He argued the law protected the farmstand from local regulations.  The local court agreed with the farmer and nullified the special conditions for operating the stand.  The neighbors appealed again still claiming the farmstand was a commercial venture which was inconsistent with the agricultural use of the land.  The appeals court upheld the decision to allow the farmstand citing a 1971 case [Cumberland Farms, 267 N.E.2d 906] which held that “all agriculture conducted for profit is commercial in some degree.”  But the appeals court reversed the lower court on the issue of whether the farmstand was subject to local regulations and approval.  It ruled the law limiting the regulation of farmstands did not preclude a zoning board from requiring an operator to obtain a special permit or prevent the board from imposing reasonable conditions on how a stand is operated.

This means that even in states where farmstands are protected, they may have to meet some local requirements, such as building and fire codes and other reasonable health and safety standards.  One federal law which may apply to the construction and operation of farmstands, the Americans with Disabilities Act (ADA), is discussed in the box below.

”ADA
Most readers have no doubt heard of the Americans with Disabilities Act, which requires people who operate public accommodations to make reasonable efforts to provide access to people with disabilities. When the U.S. Department of Justice developed the rules for implementing the ADA one question it had to deal with concerned which businesses are considered open to the public and which are not. In the discussion of the rules, the Department used the example of the difference between a wholesale produce outlet and a roadside stand to illustrate the point.

The rules provide, “The Department intends for wholesale establishments to be covered … as places for public accommodation except in cases where they sell exclusively to other businesses and not to individuals … [However], if the [wholesale company] operates a roadside stand where its crops are sold to the public, the roadside stand would be a sales establishment covered by the ADA.” This rule does not necessarily mean the roadside market would have to do such things as put in a handicapped accessible rest room, but it does mean the operators would need to be willing to accommodate people with disabilities, for example by taking the produce to the car for them to purchase. If you are concerned how the ADA might apply to your business contact the state officials responsible for implementing the law in your state.

Q. It appears the Massachusetts law restricts the operation of farmstands while it is trying to protect them, is this common?
This is a good observation.  Many of the laws designed to protect direct marketing operations may also act like regulations on the activities allowed.  It is not uncommon for state laws to include restrictions on when roadside markets may operate or to establish minimum sizes for what can be legally considered a farm.  For example, the Massachusetts protection may be limited to operations which have at least five acres.  State laws may also limit what type of products can be sold.

Q. What about horticultural operations, such as nurseries or flower gardens, are they generally protected as agricultural operations?
The question of whether nurseries or horticultural operations are considered part of agriculture for purposes of zoning laws has been the subject of several recent court cases. The answer to the question will often depend on whether the state law defines agriculture broadly to include such operations.  For example, the Massachusetts law discussed above [Mass. Gen. Laws ch. 40A§3.], includes the following statement:

For the purposes of this section, the term horticulture shall include the growing and keeping of nursery stock and the sale thereof.  Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained, and managed while on the premises.

This language was considered by the Massachusetts Supreme Judicial Court in a 1994 case, Building Inspector of Peabody v. Northeast Nursery, Inc., [636 N.E.2d 269].  The court held the business of selling trees and bushes which had been planted and nurtured elsewhere and delivered to the premises ready for marketing did not constitute “agriculture” or “horticulture” for purposes of local zoning.  As a result, the company operating the nursery was not an agricultural use and not exempt from the requirement of obtaining a special permit to operate a commercial greenhouse and salesroom in a residential area.

State and Local Efforts to Preserve Farmland Can Create Opportunities for Direct Farm Marketers

The issue of preserving farmland for agricultural use is becoming increasingly important in many parts of the U.S. as more people recognize the impact that urban sprawl and ill-planned land use can have on the economy and the quality of life.  Much of the leadership to preserve America’s farmland is coming from two organizations – the American Farmland Trust and the Land Trust Alliance.  More information about these organizations and their work is set out in the sidebar.

One of the pressures driving the need to preserve farmland is the continued growth of cities and towns and the expansion of residential and commercial uses into farming areas.  Development pressure can increase the value of land and create strong incentives for owners to sell.  Higher land values can also lead to higher property taxes which may force landowners to sell their land.   Many states have undertaken programs to limit the effects of development pressure on the property taxes paid by farms but the programs can do little to slow urban growth.

One of the primary tools being used by local land trusts and local governments to preserve farmland is to actually purchase an interest in the land.  These are often known as conservation easements.  Under such an easement the farmer continues to own and use the land but is now subject to the ownership rights contained in the easement.  The easement generally provides that the land will always remain in farming use and the right to develop it for other uses will not be exercised.  The role of the government agency or the local land trust which purchases the easement is to see that the terms of the easement – such as the prohibition on development – are enforced.

Farmland Protection Organizations
The American Farmland Trust was created in 1980 with the purpose of helping landowners and governments preserve America’s valuable farmland resources. The AFT has developed an outstanding reputation for providing thoughtful leadership on developing market-driven programs to help landowners preserve their land and to assist local governments develop land use plans sensitive to the needs of agriculture. It has helped bring attention to the impact urban development is having on farming. Learn more at the AFT website or call 413-586-4593.

The Land Trust Alliance is designed to coordinate the activities of the thousands of local land trusts working on land preservation across the nation. Land trusts use tools such as conservation easements, purchases, and land donations, to protect valuable local resources. Land trusts are often the contact point for landowners wishing to protect their farmland. Visit their website or call 202-638-4730.

Local programs to preserve farmland can create valuable opportunities for farmers who want to protect their land and to continue farming but who also would like to capture some of the increased value of their land. The local farmland protection program may offer to buy the conservation easement – for a price that is a major portion of the actual market value for the land.  In other words the farmer gets to sell an interest in the land but also gets to keep the land and farm it.  This sounds like the best of both worlds, but there is a catch. The farming activities allowed in the future will be limited by the terms in the easement. This will not be a problem if the easement is worded broadly to allow you to farm like you want to and to make changes – such as adding a roadside stand. But if the easement is narrowly worded, such as allowing farming but restricting any “retail sales” then there could be problems. The key point to remember is that while farmland protection programs may be attractive for direct farm marketers, the two activities may not always be compatible. It is important to be sure that any restrictions which come with the agreement to preserve the farmland are also designed to provide sufficient flexibility to adopt direct marketing or to adapt to a changing local economy.

One of the important issues which can arise with the sale of conservation easements concerns how they might restrict future uses of the land.  Consider the following question.

Q. If I sell a conservation easement on my farm, will I be able to add a roadside stand or develop some type of agricultural tourism?
The answer depends entirely on the terms of the easement and what it provides concerning future use.  If you know you intend to add such an operation then you should negotiate to include such language in the easement.  If the terms of the easement do not allow for such a use, the organization which holds the easement may not want to allow such a change, especially if it believes the use would detract from the agricultural nature of the land.  The following language is from a conservation easement.

Article VI

1.  Grantor(s) shall not develop or use the subject land for any purpose other than agricultural production.

2.  Grantee or its designee or either of them, shall have the right to prevent the development or use of the subject land for any purpose other than agricultural production.

3.  Agricultural production consists of, and is limited to, the production for commercial purposes of crops, livestock products, including the processing or retail marketing of crops, livestock or livestock products if more than 50% of the processed or merchandised products are produced on the subject land.

Crops, livestock and livestock products include, but are not limited to:

(a) Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans;

(b) Fruits, including apples, peaches, grapes, cherries and berries;

(c) Vegetables, including tomatoes, snap beans, cabbage, carrots, beets, onions and mushrooms;

(d) Horticultural specialties, including nursery stock, ornamental shrubs, ornamental trees and flowers;

(e) Livestock and livestock products, cattle, sheep, hogs, goats, horses, poultry, furbearing animals, milk, eggs, and furs;

(f) Timber, wood and wood products derived from trees; and

(g) Aquatic plants and animals and their byproducts.

The easement clearly provides for certain forms of direct farm marketing but adding some form of recreational operation or ag tourism venture might raise questions. As this easement illustrates, farmland protection programs can present important opportunities but the decision whether to participate is not one which should be made lightly. The accompanying box lists six steps to take in considering whether participating in a farmland protection program is right for your operation.

Six Steps to Take to Determine if Participating in Farmland Protection Will Benefit Your Operation
1. Consider the Future of Your Operation – What plans do you have for the future, will your children want to continue the business after you retire or will you want to continue it that long?  How will population growth and development in your area affect the operation of your farm and your markets?  While farmland protection programs can be very important you must recognize they will be permanent and that any income received today will need to replace gains from future land sales which are being given up.

2. Identify the Preservation Options Available in Your Area – The opportunity for farmland owners to participate in preservation programs depends greatly on where you are located.  Most programs are either funded at the state or local level, and while some states have very ambitious programs, like that of New Jersey to preserve 1 million acres of farmland and open space, other states are not offering any form of compensation.  In places where public programs are not available there may be private non-profit organizations, land trusts, or foundations working on farmland protection.  Obtain all the information you can about the various programs which might be available and how they operate.

3.  Consider How the Different Options Apply to You – Once you have determined who is working on farmland protection in your area, if anyone, then you can consider how the specific programs they offer might apply to your farm.  If you are in a state, where the county is funding a program to purchase the development rights from farmland owners, then the program may mean a source of significant capital for you to use in expanding your operation.  However, in other areas the benefits available may be limited to tax deductions for donations of conservation easements to an eligible land trust.  Only you can decide whether the benefits – both monetary and personal – which can come from preserving your farmland outweigh any costs such action may impose.

4. Carefully Examine How Any Restrictions to Preserve Your Farmland May Impact Your Ability to Operate a Direct Farm Marketing Venture.  Any farmland protection program will work either by placing restrictions on what uses can be made on the land or by requiring the actual transfer of a portion of the property rights for the land to another entity.  The documents used to implement the preservation , which may be an easement or a local regulation, will place restrictions on what other activities can be conducted on the land.  It is important to take special care in examining the restrictions and considering how they might apply to any direct marketing operation you currently have in place or that you might want to add.  A special concern is the fact that some forms of direct farm marketing, in particular, roadside markets or farmstands, involve having customers come onto the property and therefore look like commercial uses.  Other activities, such as agricultural tourism and cornfield mazes may raise questions whether they are even agricultural uses. The key is to make sure that any use you intend to conduct is in fact legal under the restrictions you are placing on your land.

5. Draft the Actual Document or Agreement Which Protects the Farmland – After you have determined you want to participate in a program to preserve your land and you have chosen which approach will be used you will need to have the actual legal documents prepared for signature.  Remember that in most cases no binding commitment has been created until you sign this agreement.  Be sure to read closely the fine print in any such agreement or restriction.  You do not want to be surprised at a later date that you agreed to something about which you were unaware.

6. Contact Your Attorney to Review the Agreement – By this time you should have consulted with your attorney to make sure that any legal questions you have about the program have been answered.  If you have not done so you should, because the agreement to preserve your farm will in most cases be permanent and non-reversible.  Because such a transfer can involve your receiving a large amount of money you need to understand its impact.  One reason to consult with your own attorney is to see that issues you might not have thought about are addressed – such as the effect of the payment on your taxes.  For example questions to consider include is it income or is it capital gains from the sale of land, and how will it affect the value of the land for property tax and estate tax purposes?

Pesticide Drift and Protecting Your Operation

Most people engaged in direct farm marketing are involved in raising crops such as vegetables, berries, fruits and flowers.  While some direct farm marketers use pesticides as part of the management program for their crops, they probably use special products and apply them carefully.  Many other direct farm marketers operate organic or chemical free farms.  Many small scale vegetable and fruit operations are located next to more conventional farms which raise traditional commodities and which rely heavily on regular spraying of herbicides and other chemicals.  Often the crops raised for direct sale to consumers are very susceptible to damage from pesticides which might drift from neighboring fields.  Pesticide drift is an especially troublesome issue for the increasing number of growers who operate organic farms.  In addition to the damage the drift can cause to the growing crops, organic producers run the risk of losing certification of their fields as organic if they are sprayed.  For these reasons, it is important to consider how to respond to the risk of your crop being affected by drifting pesticides.  The following discussion lists a number of steps to consider if this should happen to your farm.

Fourteen Steps to Consider When Responding to Pesticide Drift Problems
1. Know the phone number and address for the office of the state department of agriculture or department of environmental quality which is responsible for handling pesticide use complaints.

2. Be familiar with the state procedure for filing a formal pesticide use or drift complaint with the enforcement officials.

3. Take pictures or videos of the spraying while it is happening, if possible, paying special attention to the location, the applicator’s actions, and the apparent wind speed and direction.

4. Keep good records of all the contacts and communications you have with the parties involved, including the land owner, the farmer, the applicator, state inspectors, and insurance agents.

5. Contact the land owner or other responsible persons as soon as possible and explain your concerns about what happened and the possible damages.

6. Try to find out as much information as possible about the event, including who did the application, who ordered it, the product used, and the purpose of the spraying.

7. Contact state investigators and file a complaint as soon as possible after the incident, and have them schedule an on-farm inspection as soon as feasible.

8. Document and keep physical evidence such as plant tissue, water samples, soil samples, and any other indication of spray contact or damage.

9. Prepare an estimate of your damages and costs, both as to damaged crops, lost sales, and business damages.

10. If your operation is certified organic or has other special attributes relating to the lack of pesticide use, be sure to claim any special damages, such as for the period of lost sales which might be experienced.

11. Consider contacting your own attorney or one who specializes in agricultural or environmental issues, as soon as possible, especially if you believe the responsible parties will not agree to pay the damages.

12. In communicating with the responsible party or the insurer be direct and reasonable in your comments but do not make statements which might limit your claims.

13. Expect the responsible party and the insurer to delay the process and to introduce various theories for why they are not responsible or why your damages are less than you claim.

14. Before signing any settlement or cashing any check offered ask your attorney about the effect this will have on your possible future claim.

Hopefully you won’t experience a problem with pesticide drift but given the prevalence of chemical use in agricultural production, the possibility is real.  If a problem should arise, the state procedure for investigating pesticide use complaints should provide you with some relief.  However, it is important to recognize that any procedure which deals with the damages caused by a drift incident can never be expected to restore the situation as if the drift never occurred.  This is why it is also important to consider how the law relates to pesticide use and possible disputes over drift problems.  The accompanying box sets out ten factors to consider about the law and pesticide use.

Ten Factors to Consider About the Law and Pesticide Use
1.  Evidence of pesticide exposure on your property is per se evidence of drift (assuming you did not use the products involved) and is evidence of violation of the federal pesticide law, known as FIFRA.

2.  For pesticides “the label is the law” and all products are labeled  to require their use only under conditions which will not cause drift to occur.

3. Even if conditions such as wind speed are within allowable limits, pesticides may still drift onto other property.

4.  The process of tracing and identifying the damages caused by drift and determining where it came from can be challenging.

5.  Some classes of newer pesticides can cause significant damages to fruits and vegetables, but evidence of damage may not show up until later in the growing season, for example when no fruit sets.

6.  More pesticides are being applied by commercial applicators hired by landowners.  These applicators generally have more experience and use sophisticated equipment, but they may also be under pressure to cover more acres.  As a result chemicals may be sprayed in adverse conditions or the applicator may be less aware of special conditions or of neighbors.

7.  Commercial applicators are more likely to have insurance to cover drift damages and are subject to special state licensing rules.

8.  The fact your neighbor hires someone to spray the pesticides does not mean the neighbor is not responsible for damages as well.

9.  It is important to consider informing your neighbors about any special features of your operation – such as the sensitive nature of the crops or if the farm is organic – to put them on notice of the risks and dangers of negligent pesticide use.

10.  While you do not have to accept pesticide drift from neighbors, the use of pesticides in your area is a factor to consider in the design and layout of the farm, for example using windbreaks and considering normal wind patterns in relation to neighboring farms.

Leases and Direct Farm Marketing

Most direct farm marketers own the land they farm and as a result are able to determine how the land will be used.  But many people involved in agriculture, perhaps as many as one half the nation’s farmers – lease farmland from someone else.  Renting land can be especially important for people who are just starting out and trying to build equity to buy a farm.  Legal questions relating to farm leases typically deal with the amount of the rent, when and how it is paid, and the length of the lease period.  Most farm leases are written, though it is not uncommon to find oral agreements for renting farmland.  Farm lease questions are not especially unique to direct farm marketing, but there are some important points to keep in mind if you do lease land.

First, be sure to communicate with the landlord so they know the type of operation you are conducting.  To be fair, landlords should know if you plan to bring numerous customers to the farm, because the landlord could be liable if someone is injured.  In one California case, a landlord who owned the site on which a roadside market was operated, was held liable for the injuries of a customer who slipped and fell in the market.  The court in Lopez, [52 Cal Rpt.2d 821, 827 (citing Portilla v. Aisassa, 32 Cal. Rpt. 2d 755 (1994)] held, “A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises.  This duty also extends to the public.”  The court held the duty included a duty to inspect, repair, and exercise reasonable care.  The lack of awareness of a dangerous condition was not sufficient to avoid liability if there was a duty to inspect.

Second, try to obtain as long a lease term as you can rather than relying on a year to year agreement.  If you intend to build up your direct marketing business and add features, such as a greenhouse, then you will want more assurance you will be on the land for years to come.  Most farm leases are for only one year but there is nothing to prevent the parties from agreeing to longer periods.  You can always put a clause in the lease to renegotiate the rental amount if the landlord is worried about too long of a term.

Third, you should consider negotiating a lease with an option to buy because under American law there is no protection for the rights of tenants to buy the land they lease if the owner decides to sell.  This means you could find yourself with a different landlord or with the land you are on being sold without your ever knowing it was for sale.

Fourth, you should determine whether your state law provides any special protections for farm leases or for commercial leases and then determine what type of lease you have.  The law may provide for special procedures which must be complied with to terminate a farm lease, such as the date of notification.

Fifth, if you maintain insurance for your business you should consider listing the landlord as an “other named insured” party so they will be protected in case there is a fire or other disaster.  If you have a written lease it may require you to maintain insurance for the benefit of the landlord.

Sixth, the best advice is to meet with your landlord and negotiate a lease specially designed for your business and your needs rather than just rely on a printed form lease.

Nuisance Law and Direct Farm Marketing

All fifty states have enacted some version of a law known as a right-to-farm law which limits the ability of people to bring nuisance suits – such as for odors or dust – against farmers.  The purpose of these laws is to protect farming operations from being sued as nuisances by people who move into the neighborhood after the farm began operating.  There are many different versions of right-to-farm laws which use different tests to determine when they apply and who is protected.  As a general rule if you were there first and you are in compliance with any regulations or permits required for your farm and you are not acting negligently, then you are protected.  While right-to-farm laws can be important protections for farms, especially those in areas which are undergoing changes in the nature of the land use, the laws are subject to challenge. The Iowa Supreme Court struck down one of the state’s three right-to-farm laws on the theory that it violated the property rights of the neighbors who could not bring a nuisance suit for certain conditions.

From the standpoint of direct farm marketers there are certain basic questions to ask concerning whether a state or local right-to-farm law will apply to your farm if you are threatened with a nuisance suit by a neighbor. First, there is the question of whether what you are doing fits within the state’s definition of farming. This can be an important issue if the challenge is to your marketing actions as opposed to your farming. Second, some right-to-farm laws may only apply to farms which are a certain size or larger. For example the Pennsylvania right-to-farm law, [3 P.S. §952] defines “normal agricultural operation” as requiring “not less than 10 contiguous acres” or if less than ten acres then the farm must have an “anticipated yearly gross of at least $10,000.”  Third, under some laws the farming operation must have been in place first and not have changed within the last year to be protected.  This means if a recent expansion in your business is the subject of the suit you might not be protected.  Fourth, there is also the issue of whether something you have done will result in your losing the protection.  For example, if you fail to have a needed permit or if you have operated negligently, the operation may disappear.

As with most disputes, whether you will be successful is hard to predict as it will depend on the facts and how the court and jury feel about your conduct.  The best advice is to do all you can to maintain good relations with your neighbors.  Good neighbors are a valuable asset in farming so never forget the importance of communication.  Let people know what you are doing and why you are doing it.  If you have plans to expand or change your operation visit with your neighbors and explain your plans.  If they have concerns be considerate and see if you can accommodate their needs.  Negotiation and compromise are valuable skills in life and in direct farm marketing.

 

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